Holloway v. Nassar

• Decision Date: 16 June 1936
• Docket Number: No. 16,Jan. Term.,16
• Citation: 276 Mich. 212,267 N.W. 619
• Court: Michigan Supreme Court
• Parties: HOLLOWAY v. NASSAR et al.

276 Mich. 212

267 N.W. 619

HOLLOWAY

v.NASSAR et al.

No. 16, Jan. Term.

Supreme Court of Michigan.

June 16, 1936.

Action by Guy Holloway against Caesar S. Nassar and the Central Wholesale Company, Incorporated. Judgment for plaintiff, and defendants appeal.

Judgment affirmed as to defendant Nassar and reversed as to defendant Central Wholesale Company, Incorporated.

Appeal from Circuit Court, Shiawassee County; Joseph H. Collins, judge.

Argued before the Entire Bench.

Hicks & Des Jardins, of Owosso, for appellant Nassar.

Joseph R. Joseph, of Flint, for appellant Central Wholesale Co., Inc.

Seth Q. Pulver, of Owosso, for appellee.

FEAD, Justice.

Plaintiff had judgment against both defendants for injuries sustained in a collision between his own and Nassar's automobile.

State trunk line highway M-71 runs two miles north of Durand and turns west two miles to Vernon. From the intersection at the turn a county road runs north and a township road east. The cars collided at the intersection.

Defendants contend plaintiff was guilty of contributory negligence as a matter of law. He testified that as he came north he saw Nassar approaching from the west and watched him; it was a dark night; he saw Nassar's lights but could not judge his speed or distance away; however, he, plaintiff, reduced his speed to about 25 miles per hour as he came to the intersection, and when he reached its south line he saw Nassar (who was farther away from the intersection), slacken speed; thereupon plaintiff, thinking Nassar had slowed up to turn, accelerated his speed and had crossed the center line of the intersection when he was struck by Nassar's car, which had speeded up and had made a swing to the left or north and across the center line. Nassar claims he cannot remember what happened. Accepting the testimony most favorable to plaintiff, the question of his negligence clearly was for the jury.

At the request of plaintiff's counsel, the court asked jurors on voir dire whether they carried insurance in a certain mutual insurance company of Chicago. In asking the questions, the court substantially observed the precautions suggested in Harker v. Bushouse, 254 Mich. 187, 236 N.W. 222. Because the court, instead of counsel, asked the questions the case presents a new phase of this vexations subject. The record states that plaintiff's attorney conferred with the court before the questions were propounded, but it indicates no reason for asking about a far away company.

We cannot say the record affirmatively shows error in this respect because the court evidently thought the questions proper under the circumstances, was convinced of the good faith of counsel, and the record affords no basis for a different conclusion. We suggest that where the court conducts the voir dire examination counsel have a right, upon request, to statement upon the record of the reason for such questions in order that the good or bad faith of counsel in requesting them may be reviewed. We also suggest that the court refuse to ask such questions except upon showing, put upon the record and not in presence of the jury, which indicates their necessity to avoid injustice.

Defendants claim Nassar was an independent contractor, not an employee of Central Wholesale Company, Inc., and, in any event, was not upon the company's business when the collision occurred, and it is not liable for his acts. The court submitted the issue to the jury.

Nassar testified that for about three years he had been a traveling salesman for the company; his compensation was salary of $45 per week and commission and commission bonus; he had definite territory, including several cities and villages; he sold fruit and groceries; he called on customers, took verbal orders, wrote them in a book and communicated them in person to the company at Flint; he usually selected the fruit to fill his orders and sometimes transported it himself, but ordinarily deliveries were made by company trucks; he canvassed the territory once a week and sometimes oftener; he used his own judgment as to the hours for calling on customers and as to the order in which he should visit towns and customers; sometimes a customer would telephone him and he would call on him; he drove his own car; his duties were to develop his own trade; he received no orders from the company as to whom he should see or when, except that he was to canvass the territory once a week; it was in his discretion to call customers by telephone or see them personally; he set his own time for calling; the company did not tell him the order in which to visit towns; it was his own affair as to which town he visited first; he could add customers or drop old ones, as he saw fit; he further said he had visited several towns and taken orders, and, when the accident occurred, he was returning to Flint to give the orders to the company for shipment of the goods the next morning. His testimony was undisputed.

The only other testimony which would bear...